Excerpt:civil - payment of 'toda' charges - order 21 rule 43 of code of civil procedure, 1908 - decree holders attached certain movables property alleged to belong to judgment debtors - movables belonged not to judgment debtor but to his brother - claim of judgment debtor's brother upheld - decree holders called upon to pay toda charges - payment of toda charges not authorized by law - held, toda charges cannot be charged upon decree holders.
- .....may usefully be extracted :--'(4) the nazir has reported that no rules are available in respect of toda charges but it is a common practice of this court to keep the attached property at the place of attachment for want of accommodation and previously the charges used to be entered in the accounts of the court under the head of toda charges andpaid to the appointed chowkidar, but now they are not entered in the accounts but paid to the chowkidar direct by the party. regarding process-server, mohd. azam, who was appointed to look after this property, it has been reported that he is no more in service. he has relinquished the post and gone away.(5) as noticed above, no rules are found regarding the toda charges. it is only in the circumstances and conditions laid down in order 21, rule 43.....

Judgment:

Venkatesam, J.

1. This Civil Revision petition raises an important question regarding the legality of the practice obtaining in the Civil Courts at Hyderabad, and also said to be obtaining in the other Courts in Telangana area.

2. The short facts are these. The petitioners (Decree-holders) filed E. P. No. 433 of 1961, in Small Cause Suit No. 312 of 1961 on the file of the Additional Judge, City Small Causes Court, Hyderabad, and attached certain movables alleged to belong to the judgment-debtors. An enquiry was held by the learned Judge regarding the title to the moveables, and e found that they belonged not to the judgment-debtor, but to his brother, who claimed them to be his. At the time of attaching the moveables, the Bailiff, armed with a warrant of attachment had proceeded to the house of the judgment-debtor along with a process server. At the instance of the judgment-debtor's wife, the attached property was kept in one of the rooms in the house of the judgment-debtors and it was locked, though the decree-holders were demanding that the attached property may be brought to Court. Whatever it be, that prayer was not granted, and the moveables were kept in that room. It was presumed by the Court, and the parties that even though the moveables were kept locked in a room, they were still in the custody of a process-server who was supposed to have been deputed by the Bailiff. In the instant case, one Osman Khan was the Bailiff, and the process server is one Azamali.

3. Eventually, the claim of the judgment-debtor's brother was upheld, and the attachment was raised, and the decree-holders were called upon to pay what are called 'Toda' charges, amounting to Rs. 64. The decree-holders protested against this claim, and contended that they were not liable to pay any such charges as they were not authorised by the Hyderabad Civil Procedure Code or the circulars thereunder, or by the Civil Rules of Practice after the establishment of the Andhra Pradesh High Court The learned Small Causes Judge, by his order dated 14-2-1962, rejected that contention and directed that the 'Toda' charges should be paid within a week front that date.

4. Aggrieved by this order, the decree-holders preferred this Revision Petition.

5. As the payment of 'Toda' charges to my mind, appeared to be one not warranted by law, I requested the counsel on both sides to help me and draw my attention to the relevant legal provisions obtained prior to the establishment of the High Court of Andhra Pradesh, or thereafter. They could not place before me any provisions, but they are very positive that it is a very ancient practice obtaining in the courts in Telangana, which has almost the sanctity of law. In order to satisfy myself about the correctness of the legal position, I called for a report from the Small Cause Judge, Hyderabad to go into the matter in detail after giving an opportunity to both the parties to make then submissions and submit a report. It has since been received. Paragraphs 4 to 6 of the Report may usefully be extracted :--

'(4) The Nazir has reported that no rules are available in respect of Toda charges but it is a common practice of this Court to keep the attached property at the place of attachment for want of accommodation and previously the charges used to be entered in the accounts of the Court under the head of Toda charges andpaid to the appointed Chowkidar, but now they are not entered in the accounts but paid to the chowkidar direct by the party. Regarding process-server, Mohd. Azam, who was appointed to look after this property, it has been reported that he is no more in service. He has relinquished the post and gone away.

(5) As noticed above, no rules are found regarding the Toda charges. It is only in the circumstances and conditions laid down in Order 21, Rule 43 C. P. C. that distrained property may be kept at a suitable place in the charge of an officer of Court, But in the instant case, this rule is not applicable as the Bailiff does not appear to have acted under this provision.

(6) There is no record on the file to show what service Mohd. Azam rendered and on what basis he has claimed a sum of Rs. 64. In the absence of this material he is not entitled to claim this amount. In my opinion he cannot be allowed any sum, as the property attached wag kept in the own house of the J. D. under lock and key. Had he rendered any service, he would have submitted reports (from) time to time of the duties discharged by him.'

It is clear from this report (i) that the Toda charges were being charged by reason of the fact that the Court could not keep the attached, property in the Court premises, and very often it was left at the place of attachment in the custody of the process-server. Further, it appears that these charges used to be entered in the Ac-counts of the Court under the head of 'Toda' charges, and paid to the Chowkidar who was appointed to take care of the properties, but in recent times they are not entered in any ac-count, but paid to the Chowkidar direct by the party.

(ii) The Process-Server, Mohammad Azam who was appointed to look after the property, has left service.

(iii) There are no rates for determining the 'Toda' Charges in any given case. It Is also admitted that the conditions laid down in Order XXI, Rule 43 C. P. C. are not followed in cases where 'Toda' charges are ordered. In the instant case, the Bailiff did not act under this Rule.

(iv) There is no record to show what services the Process Server rendered, and on what basis he claimed Rs. 64. The Small Cause Judge is of the opinion that in the absence of that material, he was not entitled to claim any amount.

(v) The Small Cause Judge was also of the opinion that that amount could not be allowed as the property was kept in the house of the judgment-debtor himself under lock and key, and if the process server has rendered any services, he would have submitted reports to the Court regarding the time spent by him in keeping watch.

6. It is too elementary that any payment ordered by a Court to be made by one party to the other party, or to an Officer of tie Court, on any account whatever, should be one authorised by law. It must be authorised either by the provisions of the Civil Procedure Code, or by the Civil Rules of Practice, or any other rule having the force of law. In the instant case, it is clear that there is no such rule framed either before the establishment of the Andhra Pradesh High Court or subsequently. Further in the instant case, the attached goods were kept in one of the rooms of the judgment-debtor's house. The judgment-debtor is a Muslim, and their women folk observe pardah, and in their house no stranger would be allowed. It is unimaginable that any process server could have kept a watch over things inside the house belonging to a Muslim gentleman. The rate at which the charges are claimed, as already stated is not known. In the instant case, it may incidentally be mentioned the total value of the moveables attached is Rs. 48 while the decree-holders are asked to pay Rs. 64 by way of 'Toda' charges. Further it may be noticed that the decree-holders never wanted the moveables to be kept in the house of the judgment-debtor, but prayed that they may be brought to the Court-house, which was not done. In these circumstances, it is really surprising how the Small Cause Judge, without applying his mind to any of the relevant circumstances directed payment of Rs. 64 as 'Toda' charges. Since I have already found that the payment itself is not authorised by law, the decree-holder cannot be directed to make the payment.

7. There is another point to which I should advert. I find it difficult to understand how the Courts have been permitting all along the 'toda' charges not being entered in the accounts of the Court, and directing the parties to pay the amounts to the process-server direct. When it is remembered that the process establishment of the Court is very important limb of the judicial machinery, it follows that every pie that is received by them for rendering services must he properly accounted for, even granting that they are entitled to some additional remuneration in certain cases over and above their salary, about which I have got my own doubts. But the fact remains, that for several years the parties were being directed to pay the 'toda' charges to the Amins, which they must be gladly receiving, and all this was done with the express permission and under orders of Courts. It is needless to state that this practice, however old it may be, should be put an end to and in no event should a court direct a party to pay any amount, either by way of 'Toda' charges, or any other charges, without bringing it into the Court account.

The payment, if any should be made by the Officer to the Process-server, but never by the party direct to the Amin, except where such procedure is provided for by the Rules. It is, no doubt, true that in certain situations, the nature of the property might be such that it cannot be brought to the Court-house straightaway, or that it may be necessary to keep it at a place other than the Court-house, and that a Process-Server or process servers may be required to keep a watch over the property till the rights of parties are adjudicated upon. In such cases, proper Rules ought to be framed. But the fixation of an arbitrary sum as 'Toda' charges to be paid to the process-server is certainly not the remedy. I have, therefore, no hesitation in holding that payment of 'Toda' Charges ordered by the Small Cause Judge in the instant case isillegal and cannot be sustained. The revisionpetition is, therefore, allowed but in the circumstances, there is no order as to costs.